Recent cases alertDPP (Cth) v Beattie [2017] NSWCCA 301 — concurrent sentences imposed by sentencing judge based on temporal proximity of offences failed to adequately acknowledge separate harm done to each victim.R v Asaad [2017] QCA 108 — artificial and complex to adopt approach requiring sentencing judge to have to ask what would be likely to have been the head sentence imposed if the offender had been sentenced for past offences and subject offence at the same time.R v Thomson [2016] NSWCCA 56 — sentencing judge erred in ordering State offences be served wholly concurrently with Commonwealth offences, need to avoid perception that offenders will not punished more severely for committing multiple offences.R v BAE [2015] NSWCCA 133 — mere temporal relationship between offences does not mean that the criminality of one offence can encompass the criminality of the other offences.R v Mallett [2015] SASCFC 49 — crushing sentence was imposed thus degree of concurrency required.*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

The totality principle is a long-standing common law principle. It ‘requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.’ 1

[C]ases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look to the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences(emphasis added).2

The totality principle functions as a ‘limitation upon excess’ by requiring courts to ensure that an offender receives an appropriate overall sentence. 3 The principle is a product of both proportionality and mercy. 4

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a “crushing” sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ)… (emphasis added). 6

2.1 First Limb: ‘Proportionality’

The totality principle will operate to reduce the total effective sentence where accumulation of sentences is otherwise appropriate but would produce a total sentence which is disproportionate to the total criminal conduct(emphasis added).

[T]here is a difference between the principle of totality and the avoidance of a “crushing” sentence — because a sentence of three years, for example, might offend totality principles and yet not be so long as to crush the offender — and the requirement to “stand back” and assess the overall criminality applies even where the sentence would not be described as crushing (emphasis added).

2.2 Second Limb: ‘Crushing Sentence’

The notion of a ‘crushing sentence’ applies even where the totality principle does not, however it tends to play a greater role when sentencing for multiple offences. A crushing sentence is commonly defined as one which will induce a feeling of helplessness in the offender and destroy any reasonable expectation of a useful life after release. 8

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects(emphasis added).9

[T]o mitigate what strict justice would otherwise indicate, where the total effect of the sentence merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. 11

However, as Professor Freiberg notes, the extreme length of a sentence, without more, does not necessarily allow it to be characterized as ‘crushing’, and the fact that a sentence is ‘crushing’ does not necessarily mean that it will be held to be manifestly excessive. 12 In Azzopardi v The Queen [2011] VSCA 372, Redlich JA (Coghlan and Macauley AJJA agreeing) explained at [69]:

[A] crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle. The subjective effect of a total effective sentence upon the offender must be put in perspective. While relevant, it cannot be regarded as of paramount importance … [t]he overriding principle is that the sentence “should fairly and justly reflect the total criminality of the offender’s conduct” (emphasis added).

2.2.1 Crushing sentence may be imposed

The fact that a sentence will be crushing is not of itself a reason for mitigation. As Doyle J stated in R v E, AD [2005] SASC 332 at [38]:

Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed (emphasis added). 13

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences … must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment …

Courts have also noted that public confidence in the administration of justice requires courts to avoid any suggestion that what is being offered ‘is some kind of discount for multiple offending’. 14

3. Application of totality to custodial sentences

The principle of totality applies where an offender is being sentenced for multiple offences. Consideration of an offender’s total criminality must also take into account any sentence the offender is already serving. 15

3.1 Section 16B does not apply to overseas sentences

Recognition of the totality principle in s 16B does not extend to courts taking into account sentences imposed in foreign jurisdictions.

In Postiglione v The Queen [1997] HCA 26, the appellant had previously been convicted of two drug trafficking offences by an Italian court. Custodial sentences for those offences remained outstanding. Justice McHugh made the following observations at footnote 47 regarding the relevance of sentences imposed by the Italian Court:

Although her Honour was entitled to take the Italian sentence into account as a mitigating factor, whether under s 16A(2) of the Act or otherwise, she was not entitled to take it into account under the totality principle recognised by s 16B of the Act. The totality principle to which s 16B refers is confined to sentences imposed for federal, State or Territory offences.

3.2 Structuring multiple custodial sentences

Courts should be allowed flexibility in applying the totality principle. 16 However, a sentencing court will fall into error where regard is only had to the total effective sentence to be imposed upon on the offender. 17

While a court is not precluded from lowering each sentence and aggregating them, this is not the preferred approach. 18The ‘orthodox approach’ when structuring custodial sentences consists of fixing a sentence for each separate offence and aggregating them, before applying the totality principle to determine issues of concurrency.19

[T]he orthodox approach to sentencing … provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated … 20

3.3 Cumulative, partly cumulative and concurrent sentences

Under the ‘orthodox’ approach to sentencing, application of the totality principle will generally determine the extent to which sentences are to be served concurrently. 21 The structuring of sentences will also be affected by whether the offences form part of a ‘course of conduct’. See further: One Transaction Rule.

In Cahyadi v The Queen [2007] NSWCCA 1, [27] the Court considered an appeal against sentences imposed for both state and Commonwealth offences. Howie J (Adams and Price JJ agreeing) summarised the principles relevant to determining whether sentences should be cumulative, partly cumulative or concurrent at [27]:

The issue [whether sentences ought to be imposed concurrently or consecutively] is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality (emphasis added). 22

Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence (emphasis added).

4. Application of totality to non-custodial sentences

The totality principle is applicable to non-custodial sentences such as fines, pecuniary penalties and disqualifications (such as from managing a corporation). In a manner consistent with custodial sentences, courts must assess if the total penalty is appropriate in the circumstances.

[T]he reasoning in criminal sentencing cases cannot be applied precisely to civil penalty cases, since the Court cannot replicate cumulation or concurrence in sentencing. Nonetheless, it is important to consider the totality of the penalties imposed to ensure that they fairly reflect the statutory criteria and do not result in unfairness(emphasis added).23

[D]etermine an appropriate level of penalty for each contravention, as if it were a separate offence, and then to look at the aggregate of those penalties in the light of the overall conduct of the appellant, to form a view as to whether that aggregate was out of proportion to that overall conduct. 24

This approach delineates the appropriate penalty for individual contraventions, and quantifies the extent to which the totality principle has been taken into account in the aggregate penalty. 25

The totality principle is also applicable when determining the disqualification period to be imposed for multiple contraventions. In ASIC v Healey [2011] FCA 1003, Middleton J stated at [130]:

In relation to disqualification periods, when determining the disqualification period to be imposed for multiple contraventions, the court should impose a disqualification period for each individual contravention and then take into account the totality principle to arrive at a total effective disqualification period.

In R v Walkuski [2010] SASC 146, [6] Doyle CJ described the principle as follows: ‘It can also be said that the concept of totality reflects two particular considerations. One of them is proportionality. The sentence must bear an appropriate proportion to the overall criminality involved. The other is mercy.’ See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 795; A Lovegrove, Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Research and Public Policy Series No 59, Australian Institute of Criminology, 2004) 129-34. ↩

In Postiglione v The Queen [1997] HCA 26, McHugh J extracted a series of judicial statements regarding the common law principle of totality and stated ‘[t]his line of authority is consistent with the recognition of the totality principle found in s 16B of the Act’. See also Kate Warner, Sentencing in Tasmania (2nd ed, 2002) [9.142]; Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [5.15].↩

In El Rakhawy v The Queen [2011] WASCA 209 the court cited McLure JA’s description of totality in Roffey v Western Australia [2007] WASCA 246 and stated at [69]: ‘The totality principle is consistent with provisions of the Crimes Act applicable to the sentencing of Commonwealth offenders. In particular, s 16B which requires a court sentencing a federal offender to have regard to any other sentences already imposed on the person: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.’ See also the discussion of the second limb of the totality principle in R v Schmidt [2011] QCA 133, [17]-[45] (Fryberg J). ↩

See also CEO of Customs v Jing [2007] NSWSC 1354 where Howie J stated at [25]: ‘It is important to have regard to the principle of totality that applies even though the Court cannot impose penalties that are concurrent as might be done if the Court were imposing custodial orders.’ ↩